John Smith Part III
Learn more about John's case below and then help us finish our work so that we can
Shooting | Evolving Description & Identification | Police Investigation | Alibi |Alternative Suspect | Pretrial Investigation | Trial | Post-Trial Litigation | John's Pleas for Help | Innocence Matters Investigation | Help Us Help John
Proving innocence after a guilty verdict . . .
Once convicted, John's grandparents, people of modest means, mortgaged their home and hired a private law firm to the tune of $65,000 to establish John's innocence. The new lawyers believed 100% in their client's innocence, but were not able to effectively undo the damage done by the trial lawyer. They made costly mistakes along the way. John lost his appeal. His habeas petition was dismissed when the law firm failed to meet a filing deadline!
For years, John searched in vain for another lawyer or pro bono group to help him. In 2010, he found Innocence Matters. We actively investigated the case over the summer and filed a petition for habeas corpus on October 29, 2010. Eight days later, Superior Court Judge Espinoza gave the prosecutor 30 days to tell the court why John should not be released.
Although a year has passed, we still believe truth, reason, and decency will prevail and the prosecutor will concede the point. Unfortunately, these innocence cases have a way of getting bogged down in procedure. We are taking nothing for granted; we continue to investigate the case and are committed to securing John's release. Please help us by making a contribution to his fund.
Post-Trial Litigation
On November 2, 1994, after a mere three hours of deliberation, the jury returned with a guilty verdict. John was shocked. He was innocent. How could the jury not see that? On November 10, 1994, John's family met with new lawyers from a private law firm and agreed to pay $100,000 for their services. The contract was later modified to $65,000 in lawyers fees. John's biological grandparents were people of modest means but they were willing to mortgage their home to help their innocent grandson. John and the rest of his family were convinced that his conviction was due to the poor representation he received from his court-appointed lawyer. Money would solve it. Right? Well, not quite.
Unfortunately, the new lawyers would turn out to do more harm then good for John. The lawyers genuinely believed in John's innocence and were appalled that a conviction could be secured on such weak evidence. The lawyer who did the most work on the case only had a few years experience. He did some investigation but was so overwhelmed with other cases that he did not have time to do all he promised John. He never spoke to the eyewitness despite his many promises and despite the fact that the witness was always very easy to find: either in jail or at his mother's home. The lawyer never investigated RC, the alternative suspect, or discovered information about RC's October 1993 drive-by shooting. He did not obtain the independent records--phone records, time cards, taxi receipts--which would verify his client's alibi and establish the timeline.
The lawyer did visit the crime scene and took measurements. He interviewed all the alibi witnesses and one other percipient witness who was not previously interviewed. He subpoenaed each of them and the trial lawyer, Murphy, to court to testify at the motion for a new trial. However, the trial judge excused the trial lawyer's appearance and refused to take any live testimony from the other witnesses.
On May 23, 1995, John was sentenced to life in prison.
The brief on appeal was impassioned and raised a host of issues, most of which centered on the trial lawyer's ineffectiveness. Many of the arguments, however, were unfocused and not tethered to or supported by established case law.
In an ineffective assistance of counsel case, the appellate lawyer has to establish two things: 1) that trial lawyer was did not act as a reasonably competent lawyer would under the circumstances and 2) that the trial lawyer's mistakes prejudiced the client (i.e., caused the conviction). With very few exceptions, appellate courts presume the lawyer had a tactical reason for acting in the manner he did. So it is up to the new lawyer to create a record showing that there was no legitimate tactical reason for the lawyer's in/action. This is why the evidentiary hearing at the motion for new trial was so important. John's new lawyers were precluded from making this record when the trial court refused to take testimony at the motion for a new trial. The court of appeal denied the claims on appeal, finding that the record below did not establish that the lawyer was ineffective. In other words, for all the court knew, Jack Murphy had a good reason for not doing a thorough investigation.
The Court of Appeal failed to rule on the claim that the trial lawyer improperly denied John an evidentiary hearing at the motion for new trial. This was a critical oversight. The lawyer's should have brought it to the court's attention right away. They did not. They let the deadline pass without taking any corrective action. They did not file a petition for rehearing or a petition for review.
Nevertheless, the law firm still had another avenue to pursue on behalf of their innocent client. They could do the investigation they had thus far neglected to do and develop new evidence of innocence and/or of the trial lawyer's ineffectiveness and then file a state habeas petition alleging constitutional grounds for relief based on newly discovered evidence. The opted not to spend any resources on investigation.
Instead, they decided to file a recycled version of the appellate brief, changing only the heading from appellate brief to state habeas petition. The state habeas petition was denied the very next day.
A federal habeas petition filed on John's behalf was ultimately dismissed when the firm missed a filing deadline.
And that's what $65,000 bought John.
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John's Pleas for Help
John spent 10 frustrating years trying to get his lawyer's attention. Letter, after letter, after letter, the lawyers made excuses. "Yeah, we're still looking for Mvuemba. We'll find him." More often than not Mvuemba was sitting in jail. John's lawyers delayed telling him for several years that the case had been dismissed due to their failure to file a brief on time!
Finally, John starting looking for pro bono lawyers to help. He wrote to every group he could find. Some turned him down because he had no money. Some turned him down because they were already too busy with other innocence cases or because it was not clear they could prove John's innocence.
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Innocence Matters Investigation
In late December 2009, John reached Deirdre O'Connor by phone believing he was calling an established organization, Innocence Matters. In fact, he reached Deirdre on her cell while she was home watching her daughter play with the new puppy Santa left a few days earlier. Deirdre explained that the project was not yet up and running and that there was no funding. John sounded heartbroken. After a long conversation that day and a few that followed over the next week, Deirdre agreed to do "a little" work pro bono to see if she could help John retrieve his file and maybe find another group who could help John. Innocence Matters' Articles of Incorporation were filed on March 29, 2010. John became Innocence Matters' first official client on June 7, 2010, the day the office doors opened.
Over the summer of 2010, Deirdre and intern Jessica Farris investigated John' case. John took a polygraph test and passed effortlessly. Deirdre and Jess gathered the remaining court documents, spoke to the alibi witnesses, visited the crime scene, found former gang members "in the know"--most of whom were in prisons scattered across California--and interviewed them. They attempted to retrieve corroborating records of John's alibi, but all such records had long since been destroyed.
Most importantly they quickly found Mvuemba and set up an interview. In the first two minutes, Mvuemba recanted, explaining that police pressure led him to select John Smith as his shooter even though Mvuemba actually did not see who shot him. Though both were ecstatic, the experience soon turned was bittersweet: on the ride home from the prison to the airport John called. Jess gave John the news and was surprised and a bit overwhelmed to hear John break down into heavy sobs. Jess, unsure what to do, offered some comforting words and then handed the phone to Deirdre without much warning of what to expect on the other end. Through the sobs, John kept saying. "all these years, they could have done this so long ago. 17 years wasted." He apologized for breaking down and eventually regained his composure. John thanked Jess and Deirdre profusely and then asked, 'how long before I get out?"
After explaining courts skepticism about recantations, John insisted that we polygraph Mvuemba, if he would agree to it. Mvuemba agreed and passed.
Jess returned to law school and over the fall a new recruit of more than a half dozen law students came on board to help draft the habeas petition. After the brief was filed in October, the students and Deirdre turned their attention back to the completing the remaining investigation.
It was then that they discovered RC, the alternative suspect, was involved in October 1993 shooting and that there were several people, including some in law enforcement, who had reason to believe in 1993 that RC was responsible for the crime for which John was ultimately convicted.